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tv   Abraham Lincoln and the Constitution  CSPAN  July 28, 2016 1:03pm-2:03pm EDT

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gerald ford the profiles in courage award that's given out by the kennedy library once a year. and it is not going to be an award for being president or for being gerald ford. it's going to be for the single act of pardoning richard nixon. and she said the tradition of her late father's book, about politicians who do things that are contrary to their own interest in the national interest. and i did not go to the ceremony, but i watched it and it was a cold shower for me. because teddy kennedy got up and said, look, at the time of the pardon, i denounced it almost as a criminal act. and now, 25 or so years later, you look at it and you realize
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it was exactly in the tradition of my brother's book "profiles in courage." and then gerald ford got up and talked about partial vindication. i remember watching this and thinking here i was convinced it was an act of maximum corruption, that the pardon was. and then it is examined many years later, dispassionately. and what looked like corruption actually is an act of courage. and that is sobering for somebody in my business. you can say, oh, yeah, this is -- the following -- this war made no sense. this was a good war and so forth. and the decades go by and it may look quite differently.
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jimmy carter, as somebody using lincoln in december 1979, as he was gearing up to run for reelection, in one of his speeches, carter said, at the height of the civil war, lincoln said, "i have but one task and that is to save the union." then carter went on to compare his responsibility in getting the 50 iranian hostages out as the same problem. he said he would devote his concerted efforts to that. and you look again at the histories of this and jimmy carter became obsessed with 50 americans. and to compare it to lincoln's effort in the civil war to save
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the union doesn't quite parse. but at the same time, in 1978, carter is president, any of you remember what he did at camp david when he invited menachem beygan and the egyptian president to the united states. took them up to camp david for a couple of weeks. and they reached an agreement, a kind of peace treaty. it did not solve the problems in the middle east, but it was a big step forward. i remember i was amazed at what carter did and the persistence of doing this. and i asked one of carter's aides, well, how did he pull this off?
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and the aide who was very close to carter said, look, if you had been locked away at camp david with jimmy carter for 13 days, you, too, would have signed anything. [ laughter ] persistence can sometimes achieve great things. ronald reagan, what's interesting about reagan and lincoln is -- that reagan used lincoln politically. but in an interesting way also, reagan understood abraham lincoln. july 17th, 1980 at the republican convention, reagan accepts the nomination. and he quotes lincoln. said, so president lincoln said "no administration by any extreme of wickedness or folly
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can seriously injure the government in the short space of four years." quoting lincoln. then reagan said, "if mr. lincoln could see what's happened in this country in the last three and a half years, he might hedge on that statement." in other words, the carter years. reagan also said in his inaugural, in 1981, "whoever would understand in his heart the meaning of america will find it in the life of abraham lincoln." true. true. and i think he got it. in 1984, when reagan was running for reelection, he said, i want
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to quote president lincoln. lincoln said, "we must disenthrall ourselves from the past and then we will save our country." and reagan went on to say, "well, four years ago, that's what we did. we saved the country." reagan had -- he said that he shared many points of philosophy with lincoln. a couple of times, called him father abraham. president george bush sr., in some of his comments about lincoln, seemed to understand the duality of lincoln. he said, if you look at some of the paintings of lincoln, you see his "agony and his greatness." and he equates the two.
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and he then also says, bush senior, lincoln was at once a hard and gentle person, a man of grief and yet of humor. president clinton used lincoln to argue that -- and said lincoln saw that the clear duty was to revive the american dream and then clinton said now the responsibility is to revive the american economy. one thing my assistant found in the research, in january 1998 president clinton was here at the university of illinois talking about the land-grant colleges.
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and it was not a particularly memorable speech. but at one point, and it's hard to believe this happened, but it did. clinton said, oh, i think lincoln would have liked the pep band. [ laughter ] i did a little checking and someone said he spotted someone he liked in the pep band. [ laughter ] we'll never know. george w. bush, as president, talked about lincoln quite a bit. i did four books on george w. bush's wars in afghanistan and iraq.
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and in one interview in the oval office with bush, he's trying to explain what his plan was after 9/11. and he said the following. "i am product of the vietnam era. i remember presidents trying to wage wars that were very unpopular and the nation split." he then, sitting there, and he points to a portrait of abraham lincoln that hung in the oval office. he said, "he is on the wall because the job of the president is to unite the nation. that's the job of the president." president obama on lincoln, a month after obama's inaugural,
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he just said -- he said, "lincoln made by own story possible." and that's exactly true. i remember interviewing president obama about the afghan war for a book i did called "obama's wars" in 2010 about the decisions obama made. and in a case like this -- i had sent him a 15-page memo saying this is what i would like to ask about obama. because every president now lives in an environment where there are two questions. there are the press conferences, the shouted questions and there is a kind of gotcha environment. so when you send a long memo saying i've worked for a year on this and i would really like to talk to you and here are the
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questions, presidents tend to respond. so when i'm interviewing him about afghanistan and what his decisions were, you may recall in his first year he sent -- ordered 30,000 more american troops to the afghan war. but at the end -- and i wanted to try to ascertain how he looked at war. because i am convinced it's very important that presidents be tough in their articulation of what the united states will do and what it will do to preserve its interests. so at the end of the interview, i handed president obama a quote from a book called "day of
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battle" from a former colleague at the "washington post" rick atkinson. in the middle of the book, rick pulls back and says i'm going to tell you about war. and this is the quote that i handed obama which was typed out. it said essentially that war corrupts everyone. that no heart leaves war unstained because it is the business even in a necessary cause of killing other people. and obama said i'm sympathetic to this. and he said go read my nobel prize acceptance speech. well, i had seen the nobel prize acceptance speech. i'd read it. ever seen something and read it and not understood it? well, it happens to me too often. so i went home and got out the speech.
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and there, in plain english, obama says, yeah, war is sometimes necessary, but then he said it is always an expression and manifestation of human folly. and i realized at that point he just does not like war. and the problem is, when you are involved in a war as commander in chief, you've got to really be tough. a couple of years ago, i was having breakfast with a world leader, head of government of one of our closest allies. and i asked about obama. and he said, obama is so smart and i like him. but then he said, but no one is afraid of him. and my heart sank because i
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realized that the distaste, the disgust for war looms so large with obama that he has not conveyed the message of fear. which is what a leader must do. what is interesting is lincoln was the master of this. lincoln was the one who knew that general sherman's march through georgia was necessary to win the war. the other interesting thing about lincoln is that he was a fatalist. this idea that events are inevitable and kind of predetermined. there was a kind of mystique about it. it was 2005.
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i was giving a talk like this in washington. and hillary clinton, then senator from new york, was there and also giving a speech. and after the speeches, we chatted and she said, oh, i quote from one of your books on bush so often that i think i should pay you royalties. i stupidly said, no, rather than how much? [ laughter ] i said, what do you quote. said it's the end of "plan of attack" about george w. bush's decision to invade iraq. it's the last line of the book. i sent questions to bush. we had done hours of specific interviews.
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and he was standing in the oval office with his hands in his pockets and i just asked -- i'm not quite sure how the question came to mind because it was not on the list of questions i had. and it was, how do you think history will judge your iraq war? and bush, as only -- i think the mention of history caused him to think about those exams in history at yale that he did not do that well on. he kind of flinched. but he takes his hands out of his pockets and says history? we won't know. we'll all be dead. [ laughter ] a less than comforting thought. but if you think about it, it's true.
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the point about gerald ford. it looks one way and then, in history, it may look the opposite. so i asked senator clinton, why do you quote that? and she said, oh, well, you can't think and talk like that and be president of the united states. i said, what do you mean? she said, you just can't. you've got to take charge. you got to do things. you can't leave it to the historians. and i thought come if she ever became president and made a big decision and someone was in the the oval office asking how history might look at. her answer will be i'll write it. she said, you just cannot think and talk like that. she got quite exercise. i was pushing back a little bit.
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she said, you just can't. you can't give yourself over to those events. and to make her point she said, george washington would never talk like that. and, you know, really pounded her fist again, said, you know, jefferson would never talk like that, and bill would never talk like that, and i envisioned the new mount rushmore. [ laughter ] washington, jefferson, bill and maybe hillary. and i was going to say something, and -- but i caught myself and thought, we won't know. we'll all be dead. [ laughter ] i am going to stop there. thank you so much.
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you did me a big favor by inviting me. thank you. [ applause ] >> that was terrific, bob. on behalf of the college of law and this great university of which it's a part, i want to thank you for that elegant and profound essay. we have a small gift that you may remember your visit here this evening. and before we depart, i just also want to thank a lot of people who worked very hard to make this very worthwhile event come off so smoothly. the communications and event folks in the college of law. especially dean carrie turner put in a lot of time. i want to thank everybody and wish you a wonderful night.
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[ applause ] >> tonight, hillary clinton becomes the first woman to accept a major political party's nomination for president of the united states. and with cspan, you have many convenient options for watching the entire speech without any interruptions. watch her historic acceptance speech live on cspan, will be to it on the cspan radio app, watch it live or on demand at hillary clinton's historic acceptance speech tonight on cspan, the cspan radio app, and coming up this weekend on cspan3, saturday night at 8:00
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eastern on lectures in history, virginia commonwealth university professor on student instructional films made during the cold war out of fear the u.s. population was falling behind the soviet union in science education. and sunday morning at 10:00, the 1952 and 1948 national conventions. in 1952 dwight eisenhower accepted the nomination. in 1948, the first televised conventions where president harry truman accepted his party's nomination. >> the failure to do anything about housing. my duty as president requires that i use every means within my power to get the laws the people need on matters of such importance and urgency. >> at 6:00, we'll take an early look at the new smithsonian national museum of
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african-american history and culture. it opens its doors to the public in september of this year. >> we were able to get amazing collection of movie posters such as the ones behind you. that's an early oscar movie poster from the 1920s. part of our job is to help people relearn history they think they know. that movie poster is from spencer williams. he was one of the most important black film directors in the late '30s and '40s. >> and sunday night at 8:00, historians talk about the process of writing a presidential biography. for our complete american history tv schedule, go to coming up next, the second part of a series of lectures on abraham lincoln's legacy. hosted by the university of illinois college of law. last week, we heard from washington post journalist bob woodward who reflected on abraham lincoln and the 16th
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president's influence on his successors. up next, columnist george will looks at judicial review and the constitution. he argues that majority rule is inevitable but not inevitably reasonable. a concept he believes lincoln supported. this is an hour. >> -- on behalf of the college of law at the university of illinois, a splendid institution where i am honored to serve as dean. i'm pleased to welcome you here to the beautiful auditorium where the second lecture in a series, hosted by the college of law entitled "the new lincoln lectures: what lincoln means to the 21st century." in this series, we are privileged to be hearing from a remarkably accomplished and ideologically diverse set of national thought leaders on lincoln's legacy and his
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continuing relevance 150 years after his passing. as i said when i introduced our inaugural lecturer bob woodward in january, the law school has chosen to focus these lectures on abraham lincoln in part because lincoln is undeniably among the greatest lawyers in america's history. the fact that he assumed many other important roles, president, legislator, military strategist, newspaper owner, et cetera, merely adds to his legacy and legend. as we know, many of the themes of lincoln's life and his life's work, the treatment of race and non-citizenship, the relationship between the national government and the states, the scope of executive power, the interplay between the president and the supreme court, the conduct of a presidential election campaign in a time of bitter partisanship, among
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others, dominate discourse today nearly as much as in lincoln's era. this remains the right time for all americans to reflect on lincoln's meaning to each of us and all of us. this is especially true for those of us here at illinois. in a real sense, the university of illinois, located between springfield and chicago is mr. lincoln's university. as we and champagne prepare to celebrate our own sesquicentennial next year, we must never forget that we were among the first of the land-grant universities created in 1867 by the act signed into law by president lincoln five years earlier and the only one in that original group founded in lincoln's home state. and who better to help us at this time and in this place, think about what we can learn from lincoln as a country and as individuals than george will, one of the finest minds this
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region has ever produced. he was born and raised in champaign where his father was on the faculty here. he attended the child development laboratory program in town and went on to graduate from the university laboratory high school. he worked for the now defunct newspaper where i understand he had a friendly rivalry with roger ebert who worked summers in champaign. from champaign, mr. will went on to trinity college and oxford university and then on to princeton where he earned his ph.d. and the rest as they say is history. he is undeniably one of america's most prolific and influential thinkers and writers. his 12 books include "one man's america," "statecraft." and "men at work, the craft of baseball." his regular column has been syndicated by the washington
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post since 1974 and today i appears in about 500 newspapers. for 32 years he was a panelist on abc television's "this week." he has been awarded the pulitzer prize for commentary, other awards from the goldwater institute among many, many others. in 1986, the washington journal called him "perhaps the most powerful journalist in america." and the chicago tribune dubbed him quote, america's leading poet of baseball. for me, three things stand out above and beyond his innumerable intellectual contributions and accolades. first, his television fame. i refer here not to fox news or on the sunday talk show this week although i must say i learned a lot about how to think like a lawyer from watching him on that show on sundays in the 1980s and '90s even though he
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like abraham lincoln never attended law school. he is such a household name that like mickey mabt l and jodie imagine yow, he was a subject of my favorite tv show "seinfeld." second, is his loyalty and dedication as evidenced by the fact that he is a diehard cubs fan. i have tremendous respect for cubs fans and i wish he and the cubbies well but i think it only fair to tell him he will have to wait until 2017. since my beloved san francisco giants win the world series in congressional election years going back to 2010. [ laughter ] finally, moving from the diamond to the gridiron, he has reported to have said "it speaks badly for a university to have a good football team." on this point, i must disagree but i should add that if his observation is true, i very much hope that the converse is also true.
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for if so, during the past few years, we have been an even greater university than i ever imagined. [ laughter ] it is my great pleasure to welcome him to the podium. before he begins his remarks, although today is super tuesday, kindly, he has framed his remarks around president lincoln and the personal meaning he has for him, so he's not going to do a political roundup in his remarks. after the formal program, there will be a q&a and he will take wide-ranging, broad questions at that time. let's welcome him onto the stage. [ applause ] >> thank you. thank you very much. thank you very much dean for that generous introduction that proves that not all forms of
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inflation are painful. with regard to the cubs, it is the case that i only write about politics to support my baseball habit. but you talked about waiting. we've been waiting 107 years. since 1908, the last time they won the world series which was two years before mark twain died. so the 107-year rebuilding effort is over. now, to the 16th rather than the 45th president. here in central illinois where men are men and where i'm from, people develop -- or at least in the 1940s and '50s did develop
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what i consider an admirable midwestern reticence about themselves. although i left to go to college in 1958, four months after my 17th birthday, i have never not for a moment ever stopped thinking of myself as a midwesterner. i am in the words that are the title of hamlin garland's once famous book published 99 years ago, a son of the middle border. as such, i still adhere to what i consider a midwestern reserve in talking about myself. i retain a midwestern inclination not to share my feelings with others and to thank others for not sharing their feelings with me. [ laughter ] which is why there hangs up on my office door in my washington office in the georgetown section, a framed new yorker cartoon that is my personal proclamation against today's confessional culture. the cartoon depicts a man dressed in a suit and tie and reclining rather stiffly on a
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psychiatrist couch with the psychiatrist sitting behind him, pen and notebook in hand. the cartoon is captioned and the man on the couch says, look, call it denial if you like, but i think what goes on in my personal life is none of my own damn business. however, the dean's agreeable summons to speak on this occasion was an invitation that was somewhat autobiographical to lift as it were a curtain and say something about my thinking and my life's work. one influence on my life's work i should say was work, some of it related to this university. one of my summer jobs was as a human scarecrow, to chase birds away from an experimental garden plot run here on the campus. back in the day, i was a pin
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setter -- this was before automation -- in a bowling alley. another summer, i worked for a local building supply company that supplied the concrete for the roof of the assembly hall. however, the largest influence on my life's work was and still is abraham lincoln. so i have come here to explain why one of the most important events in my life, one that continues to shape my thinking about the most fundamental problems of the nation's public life, is an event that happened 87 years ago. 87 years actually before i was born. the event was the work of another man from illinois, senator stephen a. douglas. the event was 1854's enactment of the kansas-nebraska act. it is not too much to say that a great question posed by that act continues to reverberate in the nation's life and certainly in my professional life.
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it reverberates in the nation's life, not just because the civil war is the hinge of american history and the kansas-nebraska act which repealed the missouri compromise of 1820 was unquestionably the spark that lit the fuse that led to war. if the civil war was not an irrepressible conflict before 1854, it certainly was after that. the missouri compromise had been the work of henry clay. who, lincoln, in the first of his seven 1858 debates with steven douglas called by bowl idea of a statesman. the compromise somewhat diffused the slavery issue and sectional animosities for three decades. it did so by forbidding slavery in the louisiana territory north of the line that included the kansas and nebraska territories.
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the kansas-nebraska act introduced by senator douglas empowered the residents of those two territories to decide whether or not to have the institution of slavery. the act's premise was that the distilled essence of the american project is democracy and that the distilled essence of democracy is majority rule. and that, therefore, it was right that there should be popular sovereignty in the territories regarding the great matter of slavery. people should have the right to vote it up or vote it down. lincoln disagreed. he responded to the act with a controlled, canny, patient, but
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i am plekble vehemence. the most morally luminous career in the history of american democracy took its bearing from the principle that there is more to america's purpose, more to justice, than majorities having their way. considering my origins in the land of lincoln, there is a personally satisfying symmetry which i will -- did not recognize at the time. and the fact that 50 years ago, i submitted to the politics department of princeton university a docket ral dissertation entitled "beyond the reasonable majorities." the title came from the supreme court's 1943 opinion in west virginia v. barnett. the second of the flag salute cases involving public school children who were jehovah's witnesses. as told by a professor of new york university law school, in his splendid history, the two cases which culminated in one of
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the most striking reversals by the court in its history began on an october morning in 1935 in minersville, pennsylvania, when william, a 10-year-old fifth grader, refused to salute the flag during the pledge of allegiance. the teacher tried to force his arm up but william held on to his pocket and successfully resisted. the next day, his sister lillian, 11, a fifth-grader, also refused to salute the flag. explaining to her teacher -- the bible says that we can't have any gods other than jehovah god. at that time, feldman explains, the flag salute closely resembled the straight arm nazi
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salute except that the palm was to be turned upward and not down. the national leader of the jehovah's witnesses had recently given a speech denouncing the nazi salute and several witnesses children around the country had come to the conclusion that lillian explained to her teacher. saluting the flag was idolatry. lillian and william were shunned at school, the family grocery store was threatened with violence and boycotted. the school district changed saluting the flag from a custom to a legal duty and the children were expelled from school. well, their case went to the supreme court. as war clouds lowered over the world. a context that was not favorable to the witnesses. they were pacifists. they had opposed u.s. participation in the first world war and were opposing any u.s.
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involvement in any war in europe. in june 1940, just days after nazi troops marched into paris, the court ruled 8-1 that the school district had the power to make saluting the flag mandatory. the opinion for the court was written by justice felix frankfurter, a former member of the national committee of the american civil liberties union. he was jewish and had been born in austria. which the nazis had occupied in 1938. as a jew, he was anxious to avoid practices that allowed schoolchildren to be treated differently because of their religion. the case millersville, the family said, quote, with an
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interest inferior to none in the hierarchy of legal values, national unity is the basis of national security. frankfurter said his personal opinion was that the school board should allow the witnesses children their dissent. he was however as most political progressives had been for many decades, an advocate of judicial restraint regarding the actions of democratically elected bodies. and he thought the court should acknowledge that the elected school board had made a defensible, meaning reasonable, choice expressing the will of the majority of its constituents. the eight members of the majority had all been appointed to the court by president franklin roosevelt whose anger with the court's refusal to be deferential towards congress -- towards congress's enactment of the new deal legislation led to
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his ill-fated attempt to pack the supreme court. the dissenter of the case had been appointed by president calvin coolidge. who i should say parenthetically was the last president with which i fully agreed. minersville flag salute law wrote stone was unique in the history of anglo american legislation. because it forced the children to express a sentiment which as they interpreted, they do not entertain and which violates their deepest religious convictions. so, deference to the school board's legislative judgment amounted to, said stone, the surrender of the constitutional protection of the liberty of small minorities to the popular will. as feldman says in 1940, the idea that the court should protect minorities from the
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majority was not the commonplace that it would later become. stone had first introduced it in 1937 burying it in a footnote indeed this became one of the most famous and consequential footnotes in the court's history. taking their cue from the court, many communities across america made flag saluting mandatory. there was an upsurge of violence against witnesses including that by a mob of 2,500 people who burnt down the witnesses' kingdom hall in kennebunkport, maine. in 1943, with the world war raging, the court agreed to hear another flag salute case concerning jehovah's witnesses for the purpose of overturning the decision that it had reached
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36 months earlier. writing for the majority and a 6-3 decision, justice robert jackson who had not been on the court earlier said the following -- the very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. fundamental rights may not be submitted to a vote. they depend on the outcome of no elections. first as a graduate student, and then briefly as a professor of political philosophy, and now for more than four decades as a washington observer of american politics and governance, i have been thinking about the many vexing issues implicated in these two flag salute cases.
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the issues include the source of american rights, the nature of the constitution, and the role of the supreme court in construing it. and what fidelity to democracy requires regarding the rights of majorities. this is why i say that the kansas-nebraska act reverberates in my professional life, it forced the nation and me later to confront a question that constantly takes new form but never goes away. it is the question of the limits of our commitment to majority rule. it is the question of how majoritarian we should be in our public life. this is a question of particular moment here at this distinguished law school because it concerns two questions that are, i hope and assume, at the center of legal education and scholarship here.
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the first is the nature and purpose of a written constitution. the second is the legitimacy of judicial review and particularly whether judicial review really does involve what has been called a counter-majoritarian dilemma. there are those, and they might be an american majority, who believe that majority rule is the sovereign american value that trumps, if you will pardon the expression, all others. they believe that the degree of america's goodness is defined by the extent to which majorities are able to have their way. such people are bound to believe that it is the job of the judicial branch of government to facilitate this by adopting a modest differential stance regarding what legislatures do. and regarding what executive
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branch officials and agencies do. here, judicial deference is said to be dictated by the nature of the modern presidency. this began with the presidency of andrew jackson but did not fully flower until modern communications technologies especially radio and then television changed the nature of the american regime by changing the nature of political campaigns and of governance. the current belief is that because presidents alone are elected by a national constituency, they are unique embodiments of the national will and hence should enjoy the maximum feasible untrammeled latitude to translate that will into policies. the twofold problem is that majorities can be abusive. and some questions are not properly submitted to disposition by majority rule
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because there are some, actually there are many, closed questions even in an open society. we must ask, how aberrant, how we must ask, how aberrant, how frequent are abusive majorities? a related, but different question is, when legislatures which are majoritarian bodies act, how often are they actually acting on behalf of of majorities? my belief, based on almost a half-century observing washington, is this -- as government becomes bigger and more hyperactive, as the regulatory administrative states become more promiscuously intrusive in the dynamics of
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society and the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority. rather, the more government decides that there are no legal or practical limits to its practical scope, and actual, competence, the more time and energy it devotes to serving the interest of minority, often very small minority factions. so, paradoxically, as government becomes bigger its actions become smaller. as it becomes more grandiose in its pretensions, its occupations become more minute. let me offer a few examples from governments below the federal level. this person emigrated to america from pakistan in 2000, settled in nashville and became a taxi driver and then got a very
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american idea. he started a business to serve an unmet need. he bought a black lincoln town car, and began offering cut-rate rides to and from the airport, around downtown and in neighborhoods not well served by national taxis. after one year, he had 12 cars. soon, he had 20 and 15 independent contractors with their own cars and a website. and lots of customers. unfortunately, he also had thereby earned some powerful enemies. the cartel of taxi companies had not been able to raise their rates since he came to town. those companies in collaboration with older limo companies that
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resented his competition. imposed many crippling regulations. another example. meadows was an african-american widow in baton rouge. she had little education and no resources. other than her talent for making lovely flower arrangements which a local grocery store hired her to do. then, louisiana's horticulture commission, yes, there really is one, pounced. they threatened to close the store in order to punish it for hiring and unlicensed flower arranger. meadows tried but failed to get a license which required her to take a written test to make four arrangements in four hours, the adequacy of the arrangements was judged by licensed florists who were acting as gatekeepers to their own profession.
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restricting the entry into the profession of competitors. meadows, denied reentry into the profession from which the government had expelled her, died in poverty. but the people of louisiana were protected by their government from the menace of unlicensed flower arrangers. elsewhere in louisiana, the monks of saint joseph abbey also attracted governments disapproving glance. in 2005, hurricane katrina damaged the trees that for many years the monks had harvested to finance their religious life. seeking a new source of revenue, they decided to make and market a simple wooden casket in which the abbey has long since buried their dead. the monks were unwittingly about to embark on a career in crime. louisiana has a state board of em balmers and funeral directors.
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its supposed purpose when created in 1914 was to combat infectious diseases. it has however long since become what is called regulatory capture. that it, it has been taken over by the funeral industry it regulates. at the time the monks began making and selling caskets, nine of the board's ten members were funeral directors. one of whose principal sources of income is selling caskets. in the 1960s, louisiana had made it a crime to sell funeral merchandise without a funeral director's license. to get a funeral director's license, the monks would have to have had stop being monks. they would have had to earn 30 hours of college credits and to apprentice one year at a licensed funeral home to acquire skills they had no intention of
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ever using. and their abbey would have had been required to become a funeral establishment with a parlor able to accommodate 30 mourners and they would have had to install an embomb -- embalming facility even though they only wanted to make rectangular wooden boxes and not handle cadavers. now, the law served no health or sanitary purpose. louisiana does not stipulate casket standards or even require that burials be done in caskets. furthermore, people in louisiana can buy caskets from out of state. from for example amazon which sells everything. obviously, the law that was brought to bear against the monks was an instrument of unadulterated rent-seeking by the funeral directors to protect their casket selling cartel.
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rent seeking occurs when private interests bend government power to their advantage in order to confer favors on themselves, often by imposing impediments on actual or potential competitors. now, you may well be thinking that i have wandered far from the kansas-nebraska act and you may be wondering what all this has to do with abraham lincoln. and with the work of a political commentator, here is my answer. the government action used to prevent a pakistani immigrant from entering into his chosen profession of operating a transportation company and the government action that blocked an aspiring flower arranger from exercising her skill and designed her to die in poverty and the action that blocked monks from making and selling wooden boxes, all of these
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actions and thousands like them from coast to coast should be but usually are not considered unconstitutional. they should be struck down even though they have issued from majoritarian processes created by elected officials. they should be struck down as violations of a natural right. the right that lincoln understood as the right to free labor. the right that was, of course, at the core of the slavery crisis. it is the unremunerated but surely implied constitutional right to economic liberty. laws survive and proliferate today because courts have long since the new deal stopped doing their duty to defend this economic liberty against the rent seeking enemies.
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in a sense, the problem began in louisiana 16 years before the monk's monastery was founded. new orleans rewarded some rent seeking butchers a lucrative benefit. the city had created a cartel for them by requiring that all slaughtering be done in their slaughterhouses. some excluded butchers went to court. all the way to the u.s. supreme court challenging this law. they lost when in the 1873 slaughterhouse cases the court in a 5-4 decision upheld the law that created the cartel.
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in doing so, the court effectively expunged a clause from the 14th amendment. the clause written to nationalize the rights of american citizenship says no state shall make or enforce any law which should abridge the privileges or immunities of citizens of the united states. the court construed the phrase privileges or immunities very narrowly. so narrowly that it disappeared from constitutional law. a fate that was intended for the citizenship particularly for the benefit of the newly freed slaves. intermittently since then and steadily since the new deal, courts have abandoned the protection of economic rights including the fundamental right to earn a living without arbitrary and international government hindrances.
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instead, courts have adopted the extremely permissive test for judging whether government actions are permissible. courts almost invariably hold that if a government stipulates a reason, any reason for a law or regulation that burdens economic activity or if the court itself can even imagine on the legislature's behalf a reason for the law or reeks of rent seeking, they should deflect to another institution that's the ultimate source of the law or regulation. indeed, in 2004, the 10th circuit court upheld a notably ludicrous oklahoma law requiring online casket retailers to have funeral licenses.
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to obtain such a license, applicants are required to take several years of course work, to serve a one year apprenticeship, embalm 25 bodies and take two online exams. the court ruled, "while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remembers the favorite pastime of state and local governments." the court did not say but it might as well have said, majority rule requires that


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